Lalu T Bansali v. State rep.bythe Inspector of Factories, Ootacamund,The Nilgiris District

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 9.7.2009CORAM:THE HONOURABLE MR.JUSTICE G.RAJASURIACrl.R.C.Nos.268 & 270 of 2006Lalu T Bansali ..Petitioner in both the revisionsvs.State rep.bythe Inspector of Factories, Ootacamund,The Nilgiris District. ..Respondent in both the revisions Petitions filed under Section 397 r/w 401 of Cr.P.C. againstthe judgements dated 22.11.2005, passed by the Additional Districtand Sessions Judge-Fact Track Court No.II, Coimbatore, inC.A.Nos.383 and 382 of 2005, confirming the judgements dated25.8.2005 passed by the Chief Judicial Magistrate, Coimbatore, inC.C.Nos.21 and 20 of 2005.For Petitioner : Mr.K.R.Shankar for Mr.R.John SathyanFor Respondent : Mr.Hasan Md.Jinnah,A.P.P. O R D E R Animadverting upon the judgements dated 22.11.2005, passed bythe Additional District and Sessions Judge-Fact Track Court No.II,Coimbatore, in C.A.Nos.383 and 382 of 2005, confirming thejudgements dated 25.8.2005 passed by the Chief Judicial Magistrate,Coimbatore, in C.C.Nos.21 and 20 of 2005, these criminal revisioncases are focussed.2. Compendiously and concisely, the relevant facts, which areabsolutely necessary and germane for the disposal of these criminalrevision cases would run thus:(a) The Inspector of Factories visited the factory by nameM/s.Mahavir Plantations Ltd., on 24.11.1999 at 2.30 p.m. and notedthe following violations: https://hcservices.ecourts.gov.in/hcservices/ "(i) Adequate lighting facility for the night shift workers ofthe Factory from the place where manufacturing process wastaking place to the place where the toilets are provided, wasnot provided.(ii) only dry latrine has been provided in the toilets."and instructed the authorities concerned to remedy the same. Sincethere was no positive response in rectifying the defects, theprosecution was launched by filing compliant before the ChiefJudicial Magistrate, Coimbatore, as against Sailesh T.Bansali. (b) Whereupon, the said Sailesh T.Bansali filed CriminalOriginal Petition Nos.35974 and 35975 of 2003 before this Court andgot the prosecution launched as against him quashed on the groundthat he was not the appropriate person to be prosecuted. It was alsothe contention of Sailesh T.Bansali that Lalu T.Bansali the revisionpetitioner herein was the Director, who was appointed as Managerwithin the meaning of the Factories Act. (c) In obedience to the High Court's order, Sailesh T.Bansaliwas deleted and Lalu T.Bansali was arrayed as an accused by way ofgetting the complaint amended. Whereupon, trial was conducted. (d) During trial, on the side of the prosecution P.W.1 and P.W.2were examined and Exs.P1 to P10 were marked. On the side of theaccused, no oral or documentary evidence was adduced.(e) Ultimately, the trial Court found the revision petitionerherein guilty and imposed the following sentences:Case No.OffencePunishmentC.C.No.21 of 2005Section 17(1) of theTamil Nadu FactoriesAct 1948Fine of Rs.50,000/-,in default, to undergosimple imprisonmentfor six monthsC.C.No.20 of 2005Sec.19(1) of the TamilNadu Factories Act1948 and Rule 41 ofthe Factories Rules1950Fine of Rs.50,000/-,in default, simpleimprisonment of sixmonths(f) Being aggrieved by and dis-satisfied with the judgements ofthe lower Court, the appeals in C.A.Nos.382 and 383 of 2005 werefiled before the Additional District and Sessions Judge-Fast TrackCourt No.II, Coimbatore, for nothing but to be dismissed by theappellate Court., confirming the judgment of the trial Court. https://hcservices.ecourts.gov.in/hcservices/

3. Impugning and challenging the judgements of both the Courtsbelow, these revisions have been filed on various grounds, the pithand marrow of them would run thus:No pre-prosecution notice was issued to the revisionpetitioner herein in respect of the alleged violations. Thecomplaint as against the accused was barred by limitation.Without adverting to these two important factors, both theCourts below fell into error in finding the accused guilty.4. Heard both sides.5. The point for consideration is as to whether there is anyperversity or non-application of law on the part of both the Courtsbelow in holding that the prosecution is not barred by limitation andthat the prosecution case is not bad for want of pre-prosecutionnotice to the accused.6. The learned counsel for the revision petitioner, by invitingthe attention of this Court to various parts of the evidence, wouldset forth and put forth his argument to the effect that the pre-prosecution notice issued to Sailesh T.Bansali cannot be taken as oneissued to the revision petitioner herein; after this Court quashedthe prosecution as against Sailesh T.Bansali, no notice was issued,admittedly, to the revision petitioner herein; by no stretch ofimagination, the violations could be termed as 'continuing offence'and hence, the judgements of both the Courts below have to be setaside.7. Whereas, by way of pulverising and torpedoing the argumentsadvanced on the side of the revision petitioner, the learnedAdditional Public Prosecutor would advance and develop his argumentto the effect that Ex.P10, marked during enquiry, would exemplify anddemonstrate that even as early as 13.12.1999, pre-prosecution noticewas sent to Sailesh T.Bansali; the aforesaid violations continuedtill the prosecution filed the complaint and hence, the act of theaccused is covered by the definition 'continuing offence', ascontemplated under Section 106 of the Factories Act and as such,there is no substance or merit in the revision.8. It is therefore just and necessary to analyse as to whetherin this case, the original of Ex.P10 was served on the revisionpetitioner herein.9. The learned counsel for the revision petitioner would invitethe attention of this Court to the cross-examination of P.W.2, whichis extracted hereunder for ready reference.@yhY o/gd;rhyp cah;ePjpd;w kDtpy; xU jug;gpdh; ,y;iy/cah;ePjpkd;w Mizf;F gpwF jpUj;jg;gl;l gpuhij 14/4/2004 md;W jhf;fy; https://hcservices.ecourts.gov.in/hcservices/ bra;Js;nshk;/ mtUf;F jdpahf fhuzk; nfl;Fk; mwptpg;g[ mDg;gtpy;iy/fhuzk; cah;ePjpkd;w cj;jutpy; MFbgah;kPJ gpuhJ bjhLf;fyhk; vd;WTwg;gl;ls;sJ/ cah;ePjpkd;w cj;jutpy; gpuhij jpUj;jk; bra;J M$h;vjphp kPJ eltof;if vLf;fg;gl ntz;Lbkd;W Fwpg;gplgltpy;iy/jpUj;jg;gl;l gpuhJ cld; M$h; vjphp yhY o/gd;rhypf;F Kfthpaplg;gl;lfhuzk; nfhUk;; mwptpg;gpy; efy; ,izf;fg;gl;Ls;sJ/ mJ m/rh/M/10(FWf;F tprhuizapd; nghJ Fwpg;gplg;gLfpwJ)/ mjpy; bgWeh; vd;gjpy;M$h; vjphpapd; bgah;. Kfthp cs;sJ/ ,e;j gpuhjpy; Twg;gl;Ls;stpjpkPwy;. rl;l kPwy; jhd; mjpYk; Twg;gl;Ls;sJ/ me;j mwptpg;g[ cz;ik efy; vd;W 15/4/2004 njjp ,lg;gl;Ls;sJ/ me;j fhuzk;nfl;Fk; mwptpg;g[ vjphpf;F mDg;gg;gltpy;iy/ M$h; vjphpkPJ tHf;Fbjhlh;tjw;F vd;W jdpahf mDkjp Miz bgwtpy;iy/ cah;ePjpkd;wcj;jutpd; nghpy; tHf;F bjhlu Mizaplg;gl;ljhy; jdpahdcj;jut[ bgwtpy;iy/M$h; vjphp kPJ tHf;F bjhlh;tjw;F mog;gilna m/rh/M/2 jhd;/M$h; vjphp kPJ bjhlug;gl;l tHf;F fhyhtjpahdJ vd;gjhy; eh';fshfntjpUj;jg;gl;l gpuhJ vd;W brhy;yp jhf;fy; bra;jpUf;fpd;nwhk; vd;Wbrhd;dhy; rhpay;y/ M$h; vjphpkPJ bjhlug;gl;l tHf;F. fhyhtjpahdJvd;Wk;. jtwhd egh; kPJ bjhlug;gl;l tHf;F vd;Wk; brhd;dhy; rhpay;y/@(emphasis supplied)Placing reliance on the said cross-examination, the learned counselfor the revision petitioner would submit in the 3rd line of the saidcross-examination, P.W.2 stated that no pre-prosecution notice wassent to the revision petitioner.10. I would like to clarify that no doubt, in the 3rd line ofthe said cross-examination, it is stated that no pre-prosecutionnotice was sent, but it should not be read out of context. Theentire cross-examination should be read. It is the stand of P.W.2that after Sailesh T.Bansali was deleted from the prosecution, nofresh notice was sent. However, in the lower portion of the cross-examination he would add that even as early as on the date of filingof the amended petition, along with the amended petition the carboncopy of the pre-prosecution notice-Ex.P10, which was sent to theaccused, was enclosed. 11. I would like to point out that at the time of markingEx.P10, it was not objected to on the ground that the original ofEx.P10 was not sent to the revision petitioner herein. There is alsono cross-examination to the effect that the original of Ex.P10 wasnot sent to the accused. In such a case, it cannot be taken thatpre-prosecution notice was not sent to the revision petitioner herein.12. The learned counsel for the revision petitioner would citethe following decisions: https://hcservices.ecourts.gov.in/hcservices/ (i) 1996 Crl.L.J.240 – THE STATE OF GUJARAT VS. HARIBHAIVITHALBHAI THAKAR, certain excerpts from it would run thus:"4. The respondent in all the appeals in the originalaccused who was working at the relevant time, as a Manager ofa factory run in the name of "Shah Paper-bag Company' atVadhvan. The respondent is hereinafter referred to as theaccused for the sake of convenience and brevity. OneMr.G.A.Nasit was working as a Factory Inspector atSurendranagar at the relevant time. He visited the factory ofthe accused on 18.2.1987 when the factory work was going on,the accused was the manager. During the course of the visit,the factory Inspector found that six workers were working inthe factory along with other workers were not shown as workersin the muster roll and that they were not issued identitycards and also leave book as required under the law. Uponfinding deficiencies and irregularities, the said workers werequestion by the Factory Inspector, thereafter he made remarksin the visit book accordingly and the reply was sign by theaccused admitting the deficiencies recorded by the FactoryInspector in the visit book.. . . . 15. It would very well be seen from the aforesaid schemeof the provisions of the Factories Act and Rules thereunderthat the manager or the occupier is statutorily obliged tofollow the provisions failing which criminal prosecution couldbe launched by the Factory Inspector. However, it is alsovery important to note that in order to succeed in a criminalcase, the complainant is bound to establish the guilt of theaccused beyond reasonable doubt. It cannot be contended thatthe principles applicable to every criminal case, should notbe extended to cases under Factories Act. The guilt of theaccused ought to be established beyond any reasonable doubt.In the light of the facts and circumstances of the case, thetrial court recorded the conclusion in all the aforesaid 18criminal cases that the alleged offences against the accusedhad not been established beyond reasonable doubt.16. The ultimate conclusion arrived at by the trial Courtappears to be reasonable and just. The aforesaid allegedworkers were examined except one before the trial Court as theprosecution witnesses and they have not supported theprosecution version. Reliance on the complainant's evidenceis rightly not placed by the trial Court. He has also notbeen able to produce the relevant original record. Ex.34, onwhich reliance came to be placed is a xerox copy of one of thecarbon copy of the original register. How could it now becontended in an appellate Court that the trial Court has https://hcservices.ecourts.gov.in/hcservices/ seriously erred in not placing reliance on the copy of one ofthe carbon copy one of the documents. If this document whichcannot be relied on and the evidence of five witnesses who arealleged to be workers in the factory at the relevant time whenthe Inspector visited the factory, is excluded from theconsideration, then nothing remains on record. Admittedly,all the witnesses who are alleged to be workers, have notsupported the prosecution case. They have clearly stated thatthey were not workers at the relevant time."(ii) 1995 COMPANY CASE (VOL 83) 616 – SIVANDHI ADITYAN VS.ADDITIONAL REGISTRAR OF COMPANIES, certain excerpts from it wouldrun thus:"........Prosecution – Show Cause notice not received byDirector – Prosecution quashed . . The legislative intention expressed in rule 3A of theCompanies (Acceptance of Deposits) Rules, 1975, is notindicative that the violation of such rule is a continuingoffence. The offence contemplated therein is committed onceand for all, attracting punishment under the first limb ofrule 11 of the Rules, which is fine which may extend to Rs.500only. For such an offence punishable with fine the period oflimitation prescribed under clause (a) of sub-section (2) ofsection 468 of the Criminal Procedure Code, 1973, is only sixmonth. . . . . . Where the notice issued by the Registrar of Companies tothe petitioner to show cause against prosecution for offencesunder Section 58A of the Companies Act and rule 3A of theCompanies (Acceptance of Deposits) Rules, 1975, was returnedunserved:Held, that the petitioner was not an officer in defaultand the prosecution of the petitioner was liable to bequashed."13. Placing reliance on the above decisions, the learned counselfor the revision petitioner would develop his argument that specificnotice to the accused, before launching the prosecution, is required.14. I would like to distinguish and differentiate between thefacts involved in the cited precedent and the facts involved in thiscase. It is quite obvious and axiomatic that in the cited precedent,the prosecution was relating to violations of the provisions of theCompanies Act, whereas, here the prosecution is relating toviolations in respect of the Factories Act. In that case, https://hcservices.ecourts.gov.in/hcservices/ admittedly, the notice sent to the alleged offender returned as 'notfound'. Thereafter, no steps were taken to serve notice and it wasthe specific case of the accused therein that the prosecution was badfor want of notice. Even though statutory notice is not contemplated,yet when the authority had chosen to serve notice on the otheraccused persons and when such a notice could not be served on theindividual concerned, the Court felt that the prosecution is bad forwant of proper notice.15. To the risk of repetition, without being tautalogous, Iwould point out that the facts of this case are different from thefacts involved in the decision cited supra. Here my discussion suprawould display and demonstrate that in fact, pre-prosecution noticewas sent to the accused, as revealed by Ex.P10, and it was notchallenged also. In such a case, it is too late on the part of theaccused to veer round and take a plea quite antithetical to whatactually transpired before the trial Court, in the revision.16. It is also a point to be noted that Factories Act is an Actby itself, purely enacted for the purpose of protecting the workingclass and taking into account the principle of 'Bonum partem' ininterpreting the statutes, the provisions of the Factory Act shouldbe interpreted in such a manner that it should be benevolent for theworkers. With a draconian eye if it is read, it would amount todoing violence to the very object of the Factories Act. If it isheld that pre-prosecution notice is a must, it would work againstthe very object of the Factories Act. Hence, on that ground also Icannot countenance the argument of the learned counsel for therevision petitioner that even though statutory pre-prosecution noticeis not contemplated, a notice should be sent by the Inspector ofFactories to the Manager. Nothing anew should be read into anystatute and more specifically into a labour statute so as to affectthe interest of workers.17. Regarding the concept 'continuing offence', I would like torefer to Section 106 of the Factories Act and it is extractedhereunder for ready reference."Sec.106 Limitation of prosecution – No Court shall takecognizance of any offence punishable under this Act unlesscomplaint thereof is made within three months of the date onwhich the alleged commission of the offence came to theknowledge of an Inspector:Provided that where the offence consists of disobeying awritten order made by an Inspector, complaint thereof may bemade within six months of the date on which the offence isalleged to have been committed. https://hcservices.ecourts.gov.in/hcservices/ Explanation – For the purposes of this section - (a) in the case of a continuing offence, the period oflimitation shall be computed with reference to every point oftime during which the offence continues;(b) where for the performance of any act time is grantedor extended on an application made by the occupier or managerof a factory, the period of limitation shall be computed fromthe date on which the time so granted or extendedexpired."(emphasis supplie)18. A plain reading of the above provision would convey andportray that if there is any violation noted by the officials and itcontinues to be so without being remedied, then it should be termedas 'continuing offence' and the words 'to every point of time duringwhich the offence continues' would cover the case at hand asdiscussed supra. 19. Whereas, the learned counsel for the revision petitioner, byinviting the attention of this Court to Section 92 of the FactoriesAct, would develop his argument to the effect that if at all there isany conviction and even after conviction, if such violationcontinues, then only it would be termed as 'continuing offence'. 20. I would like to dis-agree with such an argument put forth bythe learned counsel for the revision petitioner. What Section 92 ofthe Factories Act contemplates is a sentence at a higher level, afterfirst conviction, so to say, if there is recidivism on the part ofthe accused, then he should be visited with severe punishment. I amof the considered opinion that it is not necessary to dilate furtheron that point, as it is quite obvious and axiomatic. 21. Here the violations noted, as set out supra, were not statedto have been remedied, but it is proved to have been in existencetill the complaint was filed and in such a case, the concept'continuing offence' could readily be pressed into service and thefirst appellate Court properly ushered in that theory and dismissedthe appeal, warranting no interference by this Court. Hence, I couldsee no merit in the revisions and accordingly, the same aredismissed. sd/-Asst.Registrar/true copy/Sub Asst.Registrarmsk https://hcservices.ecourts.gov.in/hcservices/ To1. The Additional District and Sessions Judge- Fact Track Court No.II, Coimbatore.2. The Chief Judicial Magistrate, Coimbatore.3. The Inspector of Factories, Ootacamund, The Nilgiris.4. The Public Prosecutor, High Court, Madras.5. The Section Officer, Criminal Section, High Court, Madras. Crl.R.C.Nos.268 of 2006 and 270 of 2006CKN (CO)GSK 28.07.2009.